The Supreme Court will consider a law restricting transition-related health care for minors for the first time Wednesday, and legal experts say the court’s decision could affect access to transition-related care nationwide for both minors and adults for decades to come.
The key legal question the court will consider is whether a Tennessee law that bars puberty blockers, hormone therapy and surgery for trans minors discriminates on the basis of sex.
The American Civil Liberties Union and Lambda Legal argue that it does, because it prohibits such care only as treatment for gender dysphoria. The law makes exceptions for minors who need the treatments for other reasons. Puberty blockers, for example, can be used to treat children who experience precocious, or early, puberty, and physicians can still perform surgery on infants who are born with sex characteristics that fall outside the standard male or female binary.
Just days after the ACLU filed suit against Tennessee’s law in April 2023, the Justice Department intervened and filed its own complaint against the law, arguing that it discriminates against trans youths on the basis of sex and transgender status in violation of the 14th Amendment’s Equal Protection Clause. The Supreme Court granted the Biden administration’s appeal of a 6th U.S. Circuit Court of Appeals decision upholding Tennessee’s law. The court won’t consider the part of the law that bans surgery, which wasn’t covered by the lower court’s injunction.
In his reply brief to the Supreme Court, Tennessee Attorney General Jonathan Skrmetti argued that the law doesn’t discriminate based on sex but rather “draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes” and that “boys and girls fall on both sides of that line.” The attorney general’s office also argues that there is uncertainty around the risks and benefits of transition care for minors and that the state is allowed to pass legislation in an effort to protect minors.
Harleigh Walker, 17, a trans girl in Auburn, Alabama, said she’s worried about how the court’s decision could affect her future. Since Alabama’s ban on transition-related care for minors took effect in January, Walker and her father, Jeff, have had to travel 200 miles to another state, where Walker will sometimes sit in the car or in a hotel room to do a telehealth visit so she can continue receiving estrogen.
Walker plans to attend college out of state, because Alabama’s law applies to anyone under 19, the state’s age of majority, so Walker wouldn’t be able to receive care in the state until her sophomore year.
“Whenever this legislation was introduced in Alabama and state legislatures across the country, it was obviously a huge shock, and it had a lot of unsafety and uncertainty, but I knew that I was still safe under the general umbrella of the United States of America, and I could go to another state that has more of an open mind about trans people and access to health care, but with Trump being elected and this Supreme Court decision … it’s horrifying that there’s a possibility that this could affect health care access for transgender adults,” Walker said. “It’s scary to think that I won’t be safe for the rest of my life in this country, and I hope that that’s not the case.”
Trans youths, their families and providers of transition-related care have told NBC News that state restrictions on such care have created a confusing patchwork of laws across the country that has led many families to have to travel out of their home states for care. As a result, legal experts say, the court’s decision could determine what access to such care looks like for years to come not only for minors but also for adults because of some of President-elect Donald Trump’s proposed policies.
“The reason that transgender people’s health care is now protected under the Affordable Care Act is because there is a broad recognition that denying it would be unlawful sex discrimination under the Affordable Care Act,” said Shannon Minter, the legal director at the National Center for Lesbian Rights, an LGBTQ legal advocacy group. “So if the court says no, excluding this care is not discriminatory, then that would really gravely endanger our coverage under the Affordable Care Act.”
The legal landscape leading up to the case
Last year, three trans youths, their parents and a doctor asked the U.S. Supreme Court to block Tennessee’s law, which took effect in July 2023 but includes a provision that allows doctors to wean youths off of medication for nine months until March 31, 2024.
One of the plaintiffs, a 15-year-old trans girl referred to as L.W. in the lawsuit, said last year that she’s fighting the law because “I know how important this care is for tens of thousands of transgender youth like me.”
“It scares me to think about losing the medication that I need, and if this law continues, my family may have to leave Tennessee — the place I have lived and loved my entire life,” she said, adding that she doesn’t know where her family could go given how many states have passed similar legislation.
The ACLU and Lambda Legal noted in their petition to the Supreme Court that circuit courts have become split on the restrictions. The 8th U.S. Circuit Court of Appeals blocked a law in Arkansas, while the 6th and 11th circuits have allowed laws in Tennessee, Kentucky, Alabama and Florida to take effect.
Twenty-three states restrict puberty blockers, hormone therapy or surgery for trans minors; 18 of those measures have been challenged in court, according to the Movement Advancement Project, an LGBTQ think tank.
As of April, an estimated 113,900 trans youths lived in states that have restricted transition-related care for minors, according to the Williams Institute at the UCLA School of Law.
Many families with trans kids have had to work around care restrictions to continue care for their children. Some families have left their home states entirely. Others, like the Walkers, travel hundreds of miles to access care.
Dr. Izzy Lowell, founder and director of the telehealth clinic QueerMed, serves trans teens and adults nationwide. She said her clinic has seen an increase in minor patients since the restrictions on transition care began taking effect, particularly across the South. She estimates that the clinic serves 800 to 1,000 minor patients and that 80% to 90% of them live in states that restrict care for minors.
Patients in states with restrictions who have the resources to travel can go to states without such laws for telehealth appointments with the clinic, which is governed by the laws of the states patients are physically in during the appointments, Lowell said.
“A lot of my job right now is travel agent,” Lowell said. She talks with nearly every patient about where they live, what states they can and can’t travel to or when they might be on vacation or even on layovers at airports in other states. For example, she said, the clinic saw a patient who was on a layover at Boston Logan International Airport.
She said the effects of the care restrictions have been really difficult for patients.
“I think in medicine in general, we underestimate the really significant health risks of stress, and this is stress times 10,” she said. “It’s being openly hated, discriminated against. People are fearful, truly fearful for themselves and for losing treatment, which is devastating, life-threatening for people.”
The election and Trump’s promises to bar trans health care for minors nationwide and prohibit Medicaid from covering trans care have increased that fear, she said. The clinic’s new patient registrations increased from an average of 10 to 15 per week to 250 on Nov. 6, the day after the election, and 150 on Nov. 7, she said. In the following week, it averaged 50 new registrations per day.
Regardless of the outcome of the Supreme Court case, Lowell said, her plan is to never stop providing transition-related care “to the full extent that it’s legal,” even in the face of increasing backlash.
An arsonist destroyed Lowell’s practice based in Georgia last year, and she said the FBI is investigating the incident as a hate crime.
“There’s no way to plan ahead for this, other than to keep going and do everything we can for people for as long as we can,” she said. “We won’t stop until we absolutely have to.”